Legal Column: Law for the new world of work with Anna Elliott

Legal Column: Law for the new world of work with Anna Elliott

Today the HR World launches a new legal column with employment law expert Anna Elliott from Osborne Clarke. Anna will take us on the journey into the brave new world of post-lockdown work and help navigate pitfalls along the way. 

We have spoken for some time about the future of work agenda, and today, more than ever, the workplace needs to be deeply reflected upon and considered in ways many of us never imagined. 

As employers start to plan how they will safely return employees to the workplace and make other critical business decisions, it’s time to really look at what this means and what you can practicably do to protect the business, your employees and yourself.

Fundamentally, health and safety should underpin all employers return to work strategies as they remain bound by the existing framework of health and safety legislation and have to ensure, as far as reasonably practicable, the overall safety and welfare of employees.

Government guidance is also clear on this and should also be followed. This includes social-distancing, hygiene, personal protective equipment, travel arrangements. If sufficient protections are not in place when employees return to the office, employers may be exposed to legal liability and the associated financial repercussions.

Importantly, adherence to Government guidance may be helpful evidence that the steps taken were reasonably practicable and reduce these risks.

On the employment side, a key HR consideration relates to employees who have been furloughed under the Government's job retention scheme, which at the time of writing is due to end on 30 June 2020. When the scheme ends or restrictions are eased, options include:

  • Returning employees to work: if employees are to resume work, furlough should be ended in line with the terms of the relevant furlough agreement and employees will return on their pre-furlough pay unless otherwise agreed. Returning vulnerable employees, or those with childcare responsibilities if schools remain closed, should be carefully managed and take into account Government guidance and discrimination risks as equality laws continue to apply.    
  • Making employees redundant: if redundancies are unavoidable, it will still be necessary to establish a substantively fair reason for redundancies and follow a fair process in order to minimise the risk of unfair dismissal and discrimination claims. The Government has not indicated that the current Covid-19 situation is a fair reason dismiss or (unlike some European countries) imposed any restrictions on dismissal during this time. Businesses will need to establish that the reduction in work in the current environment is likely to be ongoing and there is a cogent business reason as to why redundancies are an appropriate measure. Consultation can occur while employees are still furloughed and standard processes, particularly for collective consultation, may need to be adapted for an agile workforce.
  • Implementing other cost cutting measures: if businesses want to retain staff after the scheme ends but cannot sustain a full return, there are options for short time working (less pay, less work), lay offs (no work, no pay) or other variations to contracts. We have also seen other practical measures such as freezing pay and bonuses, reducing salaries and inviting employees to take voluntary sabbaticals and career breaks. Such steps should be agreed with employees to prevent claims and if more than 20 employees are impacted, collective consultation requirements may apply.

With all of the above, employee engagement and effective communication is vital. This may also minimise the risk of employment tribunal claims (for example, those alleging they should not have been furloughed) so it is important to ensure decisions are objective, robust and documented. 

Mental health has also been a dominant concern during lockdown. Employers will need to show flexibility when building any plan for transitioning back to the workplace and ensure that they are sensitive towards employees who have been more severely impacted by Covid-19, with appropriate support in place.

Finally, this current crisis is also likely to impact future working arrangements and models. Businesses across all sectors have adapted and atypical models of flexible home-based working have emerged. This may trigger increased demand for flexible working arrangements and stronger grounds will be required to refuse such requests if there has been no impact on performance or output whilst working remotely during this time.

As you will already be aware, the situation is evolving rapidly and it's advisable to keep on top of Government guidance and ensure policies build in flexibility (where possible) to reflect real time circumstances.

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